Tenure for Teachers, Principals, School Nurses and Other Teaching Staff Members

On August 6, 2012, New Jersey enacted the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act. The TEACHNJ Act makes dramatic changes in three areas: First, it lengthens the time necessary to obtain tenure; second, it institutes minimum evaluation criteria which a teacher or other teaching staff member must attain to obtain tenure; and, third, it changes the procedures to fight tenure changes.

McLaughlin & Nardi’s attorneys have significant knowledge in this area, and Maurice McLaughlin “wrote the book” on this subject, New Jersey Public Employment Law – Education Edition (Gann Law Books, 1st ed. 2012).

Tenure

“Teaching staff members” in New Jersey public schools are eligible to obtain “tenure.”

Tenure means that a public school employer may not dismiss an employee during good behavior or reduce her compensation for any reason other than incapacity, inefficiency, conduct unbecoming, “or other just cause.” It also gives tenured employees significant procedural safeguards before a teaching staff member with tenure can be fired. (However, even a tenured teaching staff member can be laid off because of reduced enrollment or economic reasons, so long as the employer follows seniority rules.)

Only certain defined “Teaching staff members” are covered under this form of tenure. These are:

• Teachers
• Assistant principals
• Vice-principals
• Principals, other than administrative principals
• Assistant superintendents
• School nurses
• School athletic trainers
• Other employees who are required to hold certificates for their positions
• School business administrators shared by more than one district

Time Requirements for Tenure

The time frame for tenure has been three years for more than a century. This is still the benchmark for teaching staff members employed before the 2012-2013 school year. For teaching staff members hired after that, however, the new benchmark is four years. Under the TEACHNJ Act, New Jersey teaching staff members can meet the four year threshold after serving in the school district or for a particular board of education three different ways:

• The teaching staff member can serve for four consecutive calendar years.
• She can serve for four consecutive academic years, plus employment at the beginning of the next – in other words, four academic years plus one day.
• Her service totals more than four academic years within any five consecutive academic years (this provision allows a teacher to miss time to care for a newborn child without having to start the tenure clock from the beginning).

Evaluation and Mentorship Requirements

The TEACHNJ Act requires schools to establish a “research-based” mentorship program for first year teachers to enhance their knowledge and help provide strategies in the core curriculum. Schools must pair first year teachers with established, experienced and effective teachers, and provide them with opportunities for professional development.

Each board of education or school district must establish an evaluation program for its teaching staff members with the categories of “ineffective, partially effective, effective, highly, and effective.” To obtain a tenure, teacher must receive “effective” or “highly effective” annual ratings in at least two of her first three annual evaluations after her first, mentorship year.

Principals, assistant principals or vice-principals have no mentorship program. In addition, they must receive annual ratings of “highly effective” or “effective” for two of their first three years, and both the third and fourth years.

The employer must give struggling teaching staff members additional professional development. Also, the struggling teaching staff member and her supervisor are required to develop a “corrective action plan” after a rating of partially effective or ineffective.

With limited exceptions, tenure charges for inefficiency are required if a teacher, assistant principal, vice-principal or principal, receives an “ineffective” or “partially effective” evaluation two years in a row.

Procedures for Fighting Tenure Charges

The TEACHNJ Act has made drastic changes to the final steps of challenging tenure charges for New Jersey public school teaching staff members.

The initial steps remain unchanged. The local board institutes New Jersey tenure charges, which are filed with the board’s secretary in writing with a sworn statement of the evidence supporting the charges. The teaching staff member must be given a copy and the opportunity to respond. The board must consider the charges and the teaching staff member’s response and decide if it believes that the evidence provides probable cause to support the charges. It must also decide whether the charges warrant dismissal or a salary reduction. If the board decides that it does both, the board will forward the charges to the Commissioner of Education. The charges are dismissed if no determination is reached within 45 days. The employee can submit a written response to the Commissioner within 15 days. The Commissioner then examines the charges and responds within 10 days after the teaching staff member responds. The charges are dismissed if the Commissioner determines they are not sufficient.

All these provisions are the same as under the prior law. However, all subsequent procedures have been dramatically changed.

Previously, the New Jersey Commissioner of Education would have sent the charges to the Office of Administrative Law to be examined by an administrative law judge. Any charges after the start of the 2012-2013 school year, however, are referred to a New Jersey arbitrator for determination.

The arbitrator must conduct a hearing within 45 days. Evidence is exchanged between the board and the teaching staff member, and limited discovery can be conducted. The employer has the burden of proof to demonstrate that the tenure charges meet the statutory criteria.

When the charge is inefficiency, however, the arbitrator’s review is limited to whether:

1. the teaching staff member’s evaluations adhered to the required evaluation process and corrective action plan;
2. a mistake of fact was made in the evaluation;
3. the charges were made because of union activity, nepotism, political affiliation, discrimination, or other prohibited conduct; or
4. the employer brought the charges in an arbitrary and capricious manner.

If the arbitrator finds that the employee has shown that any of these are applicable, she can then evaluate whether that changed the evaluation. The arbitrator is not allowed to review the evaluator’s judgment of classroom teaching quality. There is a very limited scope of review of arbitrators’ decisions.

The Bottom Line

The TEACHNJ Act represents a dramatic change in New Jersey’s tenure laws, affecting the rights of every New Jersey teacher and teaching staff member in the public schools. Having a knowledgeable New Jersey employment attorney is vital.

McLaughlin & Nardi’s New Jersey Employment Lawyers

Having a knowledgeable New Jersey employment lawyer is important to navigate this new tenure process. McLaughlin & Nardi’s attorneys have significant knowledge in this area, and Maurice McLaughlin, in fact, wrote the definitive treatise on this subject, New Jersey Public Employment Law, Education Edition (Gann Law Books, 1st ed. 2012).

Email us, or call (973) 890-0004 to contact one of our New Jersey employment lawyers.